Bill To Strip Citizenship of Canadians Raises Civil Rights Concerns

Bill To Strip Citizenship of Canadians Raises Civil Rights Concerns

By Matthew Behrens

                  Early April news reports about the alleged involvement of Canadians in an Algerian gas plant attack have added fuel to the Harper government’s ongoing efforts to control and restrict the number of individuals entitled to the full rights of citizenship.

                  Chief among what critics call two-tier citizenship is a private member’s bill first introduced last year by Conservative Calgary MP Devinder Shory that would reduce by one year the residency requirements to obtain Canadian citizenship for permanent residents serving in the armed forces. Few have objected to this portion of Bill C-425,  largely because it affects almost no one: citizenship is a prerequisite to being a member of the Canadian military except in very rare circumstances. Of greater concern is the possible Trojan Horse use of C-425, through which a benign-sounding proposal is being used to backdoor far more insidious measures to strip certain classes of people of  Canadian citizenship.

                  Bill C-425, An Act to amend the Citizenship Act (honouring the Canadian Armed Forces), declares, “A Canadian citizen who is also a citizen or a legal resident of a country other than Canada is deemed to have made an application for renunciation of their Canadian citizenship if they engage in an act of war against the Canadian Armed Forces.” A similar provision applies to permanent residents. Unlike official government legislation, private members’ bills are not vetted by the Department of Justice to check their compliance with the Charter of Rights and Freedoms.

                  Because Bill C-425 fails to define terms like “legal resident” and “act of war,” and does not include any indication of the process that would produce such a determination, critics fear it could become a dangerous tool used to target specific communities based on racial origin, religious background, or political belief, in much the same way that Muslim Canadians have faced a disproportionate amount of attention from Canadian security forces over the past two decades.

                  Indeed, as Liberal MP Irwin Cotler has pointed out in the House of Commons, C-425 “raises serious constitutional concerns given… the Charter's guarantees in sections 6, 7 and 15, particularly where it engages matters of national or ethnic origin, or potentially the recognized analogous ground of citizenship.”

Currently under consideration by the House Standing Committee on Citizenship and Immigration, C-425 will likely include an amendment from Immigration Minister Jason Kenney that also references acts of terrorism. But it’s the lack of precision in defining such terms that has opposition MPs and civil rights advocates expressing alarm, especially following the numerous cases of refugees, permanent residents, and Canadian citizens alike who have been targeted, questioned, harassed, detained, and sometimes tortured because of the government’s broad and unrestricted interpretation of what it means to be a threat to national security.

                  As Ottawa’s Abdullah Almalki told CBC’s The Current earlier this year, he wonders whether he would have lost his citizenship had C-425 been part of the law while he was being held in Syria, tortured based on false information emanating from Canadian security agencies. Stripping Canadians of their citizenship and preventing them from returning to Canada, he said, “is a very self-serving tool for the government, so it can not only deprive a Canadian of any due process, but also to avoid the scrutiny, embarrassment, scandals, nationally and internationally, due to the government complicity in falsely labeling Canadians as terrorists and having another state torturing us.”

                  Lawyer Barbara Jackman, who has handled scores of security cases, is also concerned that the bill, if passed into law, could be used against people like her clients, many of whom have been deemed threats simply for standing up for human rights and against tyrannical overseas governments. Speaking with the CBC, she recently noted that a bill to strip citizenship in 2010 never passed, but if the prior bill’s same “reasonable grounds” standards are applied with C-425, “what we will have in the Citizenship Act is what we have in the Immigration Act, and that is a very low standard. If you have a 20% chance of believing that someone did something, you could take away their permanent resident status. Now you could take away citizenship. This is very scary.”

                  While MP Shory could not be reached for comment by Muslimlink, he did testify before the standing committee that “Canadian citizenship is a privilege. No one who basically attacks Canadian values, no one who attacks those who actually protect Canadian values, should have the right to be called a Canadian citizen.” He said part of the rationale for his bill was that when he first came to Canada in the 1980s, “there were a lot of times when we did not lock our doors when we went out. Nowadays, we actually put the alarm on while sleeping in the house.”

                  But the vagueness of Shory’s statements have created unease among some Parliamentarians. As Winnipeg Liberal MP Kevin Lamoureux asked, how far does one take the view of attacking or being disloyal to Canada? “If you have an aggressive citizen from Canada in Afghanistan yelling and screaming, possibly even throwing rocks at Canadian Forces…is that an act of disloyalty?”

                  Questioned by MPs about the concept of two-tier citizenship, Shory refused to eliminate the renunciation portion of the bill, and confirmed that even if someone were born in Canada, dual citizenship – often an irreversible consequence of birth, and not a conscious choice – could leave them open to losing Canadian citizenship.

                  Jason Kenney appeared more blunt, expressing his disappointment that he would like the bill to apply to any Canadian national, “but I’m advised we don’t have the capacity to do that legally.”  Indeed, as he acknowledged, to do so would violate the UN Convention on the Reduction of Statelessness.

                  Kenney also dismissed the issue of due process, declaring, “We ought not to be narrow and legalistic about the process of renunciation of citizenship. If individuals go out and voluntarily take up citizenship in a country that is at war with Canada…we ought not to be so legalistic as to wait patiently for them to sign a form renouncing their citizenship. We ought to read in their actions the renunciation of their loyalty to Canada and indeed their citizenship. That’s the premise here.”

                  Given that Muslim Canadians with dual citizenship have been falsely described as imminent threats to national security and wrongly detained overseas as terrorist suspects, critics point out that since Canada generally considers itself at war (against terrorism), those falsely labeled could be perceived to have engaged in such an act of renunciation.

                  Kenney says he cannot realistically see the bill affecting “anything more than single digits,” but the fear factor of the law could be widespread for the almost 3 million Canadians, many with dual citizenship, who live abroad for significant periods each year.  Many might second-guess expressing potentially controversial views or engaging in activities that could be perceived as “suspect.”

                  NDP MP Don Davies points out that similar legislation has not been introduced to speed up applications of permanent residents such as doctors and nurses, and that, apart from the citizenship renunciation concerns, the effort going into a bill that might affect a dozen or fewer individuals on an annual basis diverts from the cuts being made to immigration services at home and abroad while over 300,000 individuals are waiting 3-5 years for their citizenship to be finalized.

                  And while the issue has not been explicitly stated, recent government statements about the ability to stop so-called “radicalized” Canadians from travel abroad raise questions about how, exactly, that would be done. (Will measures include seizure of or failure to issue passports, for example, a standard U.S. practice during he Cold War for those suspected of leftist sympathies?)

                  What is clear, however, is that communities who’ve already been targeted likely face more of the same. Asked at a recent Parliamentary committee meeting if there were a group unlikely to fit the alleged security threat mold, CSIS Assistant Director of Intelligence Michael Peirce replied, “We’re not seeing a lot of CEOs being radicalized.”

                  

  

                    

In the Spirit of Dr. King, A Call for Refugee Sanctuary

In the Spirit of Dr. King, A Call for Refugee Sanctuary

By Matthew Behrens

            The annual mid-January Martin Luther King Day celebrations are generally a frustrating example of how the legacy of a difficult and troubled revolutionary can be co-opted into the image of an acceptable, bland hero who has freeways and monuments named after him. 

            Outside of a few small circles, King gets boiled down to a facile “he wanted us to be nice to each other” memory that fails to take into account the lovingly subversive message of his life and campaigns to radically transform the established order. Few have heard him name the American government the greatest purveyor of violence in the world, much less his call for a true revolution of values to transform the evils of militarism, racism, and capitalism.

            In remembering Dr. King this year, one might ask how he and the countless, courageous, often unknown workers in the civil rights movement would view the way Canada’s federal government tars whole classes of people as  “enemy,” from Indigenous rights activists and folks who don’t like oil spills to, in the case of this column, refugees. King was clear on this point: “We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy, for no document from human hands can make these humans any less our brothers [and sisters].”

            In the past year, numerous documents produced from the hands of the Harper government have demonized refugees as “bad-faith travellers,” spongers off the federal health system, and security threats, among other iterations of “the enemy”. One could be forgiven if, after reading this country’s fear-mongering refugee and immigrant legislation, you conclude it’s actually designed to protect against toxic waste or small pox rather than to welcome those fleeing rape, war, and torture.

            The overkill on refugees has prompted protest from unusual corners, such as the medical profession, as well as those who’ve traditionally spoken up, especially in faith communities. But despite the protests, the ramped up efforts to detain and deport thousands of so-called “failed” refugee claimants – at a cost of over $100 million a year – is condemning a growing number to a future of fear, intense hardship, torture and, in numerous documented cases, death (for example, see http://www.thestar.com/news/gta/article/714781--mexican-woman-deported-to-her-death). (The United States is notably playing the same game: in 2012, according to the Migration Policy Institute, they spent more on “immigration enforcement” than all other federal law agencies combined.)

           

The Option of Sanctuary

            As life and death decisions are made within the narrow confines of a thoroughly biased system, thousands of rejected refugees face a desperate choice: get on the plane and face intense hardship and torture back home, go underground and risk getting caught, detained, and forcibly placed on that one-way flight, or seek church sanctuary.

            While sanctuary is a centuries-old practice in which those who have run afoul of the state find protection within church walls, it is not often used in Canada. While dozens of individual congregations who have risen to the challenge, it’s clearly not been enough to meet the needs of those in peril. Indeed, for those who have knocked on many a church door seeking safety for an individual or family, only to be rejected, it often feels like many have forgotten the longstanding call to welcome the stranger, the oppressed, the persecuted, the wrongly defamed. Yet the tradition is firmly rooted in some cultures. Novelist Victor Hugo’s classic works Les Miserables and The Hunchback of Notre Dame both feature church sanctuary as central parts of the stories (the latter opening with a Roma woman seeking sanctuary in the famous cathedral). 

            Despite the obstacles faced by those seeking sanctuary, there are some faith communities who have come together to provide what has become life-saving support and a de facto appeal process that creates an opening for reconsideration of a case. Canada passed legislation in 2001 mandating a refugee appeal process but has yet to implement one worthy of the name.

            According to an academic study of sanctuary in Canada (Randy Lippert’s Sanctuary, Sovereignty, Sacrifice), between 1983 and 2003 there were approximately 36 incidents of sanctuary, beginning with the case of a Guatemalan woman in Montreal’s St. Andrew’s United Church in December 1983. Five weeks after entering sanctuary, a press conference was held to announce what was happening, and hours later a temporary halt of deportations to Guatemala was announced. During the period of study, there were 261 people in sanctuary, but based on five cases, temporary blanket stays of removal for whole communities were made (Guatemala, Turkey, Chile, Zimbabwe and Algeria). This affected more than 2,000 individuals slated for deportation.

            In the end result, 70% of those who sought sanctuary received legal status. In some cases individuals left and reported for deportation or went underground. But the figures point to an important conclusion: sanctuary provided the space to gather information, correct errors, and save lives.

            Since the publication of that study, there have been almost two dozen additional known cases (not counting the thousands of “informal sanctuary” arrangements with communities and friends), the majority of which have proven successful as errors and misinterpretations are corrected, proper evidence is found, and individuals get a new lease on life. But the cost has been high: what was during the course of Lippert’s study an average church stay of 150 days is now pushing, in some cases, beyond three years, an incredible punishment of individuals who are suffering because of the failures of the Canadian refugee system.

Historic Juncture

            What will churches, synagogues, temples and mosques do at this historic juncture? The United, Anglican, Evangelical Lutheran, and Presbyterian churches have all produced guides on provision of sanctuary, and the Unitarians have passed a resolution in support of the practice. The United Church of Canada’s 34th General Council upheld “the moral right and responsibility of congregations to provide sanctuary to legitimate refugee claimants who have been denied refugee status.”

            The Canadian Conference of Catholic Bishops declared in 2005 that “Each Christian community, after an in-depth study of refugee policies and prayerful discernment, in consultation with diocesan authorities, is called to act in a spirit of hospitality as the Gospel demands.

            “According to the Catechism of the Catholic Church, No. 2242, ‘The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel.’ As an Episcopal Conference, the CCCB acknowledges the importance of the recourse to sanctuary in order to protect asylum seekers whose safety may be placed in jeopardy. Even though it may not be officially recognized in law, we call upon Canadian authorities to respect the sanctity of sanctuaries.”

            To date, with one exception, authorities have been loathe to invade sanctuary churches (and in that instance, the individual taken out had a criminal arrest warrant. After years of effort, he is now, however, a Canadian citizen.). No church body has had its charitable status threatened, no church board member has been arrested, no one has been charged, no one has been fined, no one has gone to jail. The government perhaps knows that invading sacred space would alienate its core constituency.

A Civil Initiative

            Churches hosting refugees often find the act of providing hospitality becomes a community-building moment where congregations can rally around someone in a manner that helps them live out their core beliefs in a meaningful way. And while some call sanctuary civil disobedience, it is, in many ways, a civil initiative that seeks to act in accordance with higher laws (what some call God’s law) as well as the Charter of Rights and Freedoms and a slew of international human rights treaties binding on Canada. It is reminiscent of the Nuremberg obligation: to act in positive, life-affirming ways that run counter to a government practice that is in violation of the law.

            Canada’s own refugee legislation is written with the very clear preamble that it must comply with the international human rights instruments to which it is a party. That the government fails to do so creates the vacuum in which sanctuary-seeking refugees now find themselves.

            Which leads us to a question: what would Martin Luther King do?

            King answered in his “Letter From a Birmingham Jail” (which was, significantly, addressed to his fellow clergy): “The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the state, and never its tool.”

            “Any law that degrades human personality is unjust,” King wrote, adding, “Wherever the early Christians entered a town the power structure got disturbed and immediately sought to convict them for being ‘disturbers of the peace’ and ‘outside agitators.’ But they went on with the conviction that they were a ‘colony of heaven,’ and had to obey God rather than man….Things are different now. The contemporary church is often a weak, ineffectual voice with an uncertain sound….Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s silent and often vocal sanction of things as they are.” 

            King concluded that if the modern church did not “recapture the sacrificial spirit of the early church, it will lose its authentic ring, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century.”

            While Canadian churches have a long and conflicted history – being the taproot of a significant pacifist wave in the 1930s at the same time they were running residential schools with illegally kidnapped Indigenous children, for example – they now have a unique opportunity to provide sanctuary and thereby live out King’s call for relevance, witness, and that “colony of heaven” approach that leads toward a beloved community. It’s also an approach that will save lives. 

            While some may still be guided by fear, King reminds us, “Fear is mastered through faith. Fear is mastered through love.”

            Faith communities willing to consider a discussion of sanctuary are urged to contact the Anne Frank Sanctuary Committee (tasc@web.ca, 613-267-3998) and the Canadian Sanctuary Network sanctuaryincanada@gmail.com, www.sanctuarycanada.ca

(this article originally appeared in rabble.ca, at http://rabble.ca/columnists/2013/01/spirit-dr-king-call-refugee-sanctuary

Urgent Action on Refugee Health Care

 (Please respond even if you do not live in Ontario, as this is a national issue.)

Dear health providers, social service providers and community members of Ontario:

In response to drastic cuts to the Interim Federal Health (IFH) program in Canada, 2012 was marked by historic mobilizations where health care workers and allies took to the streets, occupied Conservative MP offices, rallied outside Citizenship and Immigration Offices, launched a Non-Cooperation Campaign in response to drastic cuts to refugee health care coverage in Canada. These cuts mean a man in Saskatchewan was denied chemotherapy for his cancer treatment, pregnant women have been denied coverage for their deliveries, countless refugees and claimants have been cut off from access to medications and now, those seeking refuge from countries Jason Kenney has designated as ‘safe’ will not be able to get care even for a heart attack. These cuts are in line with ongoing regressive immigration policies introduced by this government including Bill C-31.

In the wake of these cuts, Quebec has stepped up to fill the gap by providing health care coverage for refugees. Manitoba has said they will do the same and send the Feds the bill. Saskatchewan has called for a review of the cuts and provided chemotherapy for a dying man. Yet, we have seen no action from Ontario and it’s time we escalate our demands.  As a New Year’s resolution, we are asking you to JOIN US in calling on the province to step up, FILL THE IFH GAP, and provide healthcare coverage for all those seeking refuge in Ontario. Help us make this an issue in the Ontario Liberal Leadership race by participating in our three upcoming Wednesdays of Action leading up to the Leadership Convention!

1. The next three Wednesdays in January (Jan 9th, 16th, 23rd) leading to the convention, we need your help to:
Flood the communication lines asking Ontario Liberal Leadership candidates to make public statements agreeing to fill the IFH gap if they are chosen. Scroll down for contact information for all candidates.

A. Phone the candidates.   
B. Email the candidates individually or click here for an easy online form that will email all candidates for you.
C. Tweet the candidates. Use the hashtag #FillTheIFHGap as well as using the #olpldr and #onpoli hashtags. Scroll down for automatic tweet links.
D. Have your organization write a letter to the candidates.

2. On Wednesday, January 23rd, JOIN US in a public rally to deliver a petition with over 627 signatures of health professionals, social service providers and community members to the Ministry of Health. 

When: Wednesday, January 23rd, 11:30am
Where: Ministry of Health and Long Term Care office (900 Bay Street), Toronto.
Why: Because it’s time for the Ontario government to step up and fill the IFH gap.
Who: We are mobilizing the 627 signatories and calling on everyone else to join us!


See the petition here: http://health4all.ca/PetitionToMinisterMatthews

3. On the weekend of the actual convention, January 26th and 27th, we want you to help us TAKE OVER the #olpldr and #onpoli hashtags demanding that the candidates promise to #FillTheIFHGap.

Contact Information for Ontario Liberal Leadership Candidates:
Name
Email
Phone
Twitter
Eric Hoskins
ehoskins.mpp.co@liberal.ola.org
416-967-0814

416-656-0943
@DrEricHoskins
Gerard Kennedy
gk@gerardkennedy.ca
647-472-6000
@GKennedyOLP
Glen Murray
gmurray.mpp.co@liberal.ola.org
416-924-5500

416-972-7683
@Glen4ONT
Sandra Pupatello
sandra@sandraforleader.ca
416-351-1919
@SandraPupatello
Charles Sousa
csousa.mpp@liberal.ola.org
416-507-6519
905-274-8228
@SousaCharles
Harinder Takhar
takhar@votetakhar.com
htakhar.mpp.co@liberal.ola.org
289-232-8273
905-897-8815
@HarinderTakhar
Kathleen Wynne
contact@kathleenwynne.ca


kwynne.mpp.co@liberal.ola.org
416-964-8556


416-425-6777
@Kathleen_Wynne

Don’t know what to tweet? How about:
@DrEricHoskins As a doctor who has worked with refugees, do you agree to #FillTheIFHGap if you become #olpldr? #onpoli #refugeehealth Click to tweet this.
@GKennedyOLP Quebec & Manitoba have stepped up to #FillTheIFHGap from #refugeehealth cuts. Will you do the same in Ontario? #onpoli #olpldr Click to tweet this.
@Glen4ONT Ontario has a responsibility to the migrants who live here. Will you #FillTheIFHGap left by #refugeehealth cuts? #onpoli #olpldr Click to tweet this.
@SandraPupatello 627 frontline workers and community members want you to #FillTheIFHGap. Will you commit to this? #olpldr #onpoli Click to tweet this.
@SousaCharles As a frontline worker, I want you to commit to #FillTheIFHGap. Ontario must provide #refugeehealth. #olpldr #onpoli Click to tweet this.
@HarinderTakhar Will you let refugees die in Ontario? Commit to #FillTheIFHGap and provide healthcare for refugees. #olpldr #onpoli Click to tweet this.
@Kathleen_Wynne Frontline workers will deliver a petition to @Deb_Matthews to #FillTheIFHGap for #refugees. Will you support? #olpldr onpoli Click to tweet this.


Please forward this widely to your contacts, and share the link for the callout here: http://health4all.ca/FillTheIFHGap and the facebook event here: https://www.facebook.com/events/455851527807727/?notif_t=plan_user_joined. If you are interested in helping organize logistics for this action or would like any further information, please contact us at healthforalltoronto@gmail.com!

In Solidarity,
Health for All
@HealthForAllTO
www.health4all.ca

NS Case Leaves Unresolved Rights of Niqab-Wearing Women

(from January, 2013 MuslimLink)

By Matthew Behrens

            The recent Supreme Court of Canada judgment in the NS case – deciding whether a woman who brought charges of childhood sexual abuse against male relatives could wear her niqab while providing testimony – sparked much discussion that reflected the ongoing tension of a Canadian society where misperceptions and mistrust of anything associated with Islam remain a constant.

            Part of those tensions reflect an Islamophobic lens that, as University Of Ottawa professor Natasha Bakht points out, positions the niqab as a symbol that is “experienced by non-wearers as a form of confrontation or criticism against national ways of living and dressing.” In another respect, Canadian society in general and courts in particular continue to have much catching up to do in the respectful treatment of sexual assault survivors such as NS who, while still a child, reported alleged abuse to a teacher. However, her father convinced police not to lay charges. Charges were eventually laid when NS was an adult.

            In the NS case, the accused, a male cousin and an uncle, allege that an inability to see the full face of NS while she testifies denies them the right to a fair trial because they need to observe her facial demeanour as a means of assessing credibility. NS’s lawyers, among others, argued that this is a red herring, since demeanour is at best an inexact, subjective science that, even if relied upon, can be measured in innumerable other ways in ultimately making a determination about truthfulness.

WHACKING THE COMPLAINANT

            In the end result, the majority of the Supreme Court sent the issue back to the original judge hearing the case, concluding that decisions about the niqab could be made on a case-by-case basis. While some appeared satisfied with the result – including the complainant’s lawyer – the decision failed to resolve a number of significant issues. Chief among them is whether the defendants’ demand for a removal of the niqab – which NS had already said would make her very uncomfortable – is another form of continuing abuse, what intervening group  Women’s Legal Education and Action Fund (LEAF) called an attempt to “whack the complainant,” a common defence tactic.  In other words, as LEAF argues, “the removal of the niqab in this context is best understood as an attempt to humiliate, degrade and intimidate the complainant.  Such intimidation can force a complainant to withdraw from participating at trial, likely putting an end to the prosecution.”

            Indeed, that issue remains a live one in the NS case, as she still does not know whether a judge will order her to remove her niqab. While the Supreme Court majority found that requiring “witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition,” if such uncertainty is to become the standard, this will likely create a barrier that keeps a specific group of women from accessing the justice system when they have been wronged.

            Ironically, the male defendants in the NS case did not appear to object at the original preliminary inquiry when NS was questioned about her strongly held beliefs by the judge. That judge  listened to her responses while she was wearing her niqab and did not say that her niqab prevented him from assessing her testimony. During that questioning (one she undertook without the benefit of prior legal advice), NS said she had worn niqab for five years, declared she would look defence counsel squarely in the eyes, and said that she would feel “a lot more comfortable” if she did not have to remove it. The judge, however, concluded her religious belief was “not that strong,” and so began the process leading to the Supreme Court challenge. (The Supreme Court, notably, said the judge failed to undertake a proper inquiry into the sincerity of her belief. Equally notable, the Supreme Court has ruled in the past that “a court is in no position to question the validity of a religious belief.” )

INADVERTENT DISCRIMINATION

            While two dissenting Supreme Court justices insisted on a complete ban on the niqab in all criminal proceedings, Justice Rosalie Abella, in her singular dissenting opinion, declared that unless “the witness’s face is directly relevant to the case, such as where her identity is an issue, she should not be required to remove her niqab.”

            Abella’s findings, which appear more sympathetic to NS’s view, may still nonetheless be exploited to “whack the complainant,” while perhaps inadvertently buying into the notion that a woman might wear niqab to hide behind false charges. It is difficult to imagine that, even under the narrow circumstances described by Justice Abella, a defence lawyer will be shy about pushing the identity envelope. Meanwhile, Natasha Bakht notes that a similar vein of inferring the potential for misrepresentation via niqab is one that has arisen in Pakistani courts for niqab-wearing lawyers, remarking: “That veiled advocates are suspected of misrepresenting themselves when lawyers have codes of conduct that they are required to abide by, indicates that even those most educated in justice do injustice by resorting to biased beliefs about a marginalized group of women.”

            Thus, assaulted women who wear niqab will still question whether it is safe to go to court, since an ironclad guarantee is not in place. This is ironic, since within the Supreme Court’s decision are found numerous examples of why the main argument – the need to see NS’s face – is not necessarily determinative of the strength of her testimony.

DEMEANOUR EVIDENCE

            “Courts regularly accept the testimony of witnesses whose demeanour can only be partially observed and there are many examples of courts accepting witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments,” Abella wrote, noting that a demeanour assessment of NS could include gestures, eyes, body language, tone and inflection of the voice, cadence of her speech, and, ultimately, the substance of her verbal answers, which would be subject, no doubt, to vigorous cross examination.

            In a scholarly article “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms,” Bakdt quotes a study finding “that with rare exception, ‘no one can do better than chance at spotting liars by their demeanour.’ It is amazing to many people when they learn that all of the other professional groups concerned with lying – judges, trial attorneys, police, polygraphers who work for the CIA, FBI or NSA (National Security Agency), the military services, and psychiatrists who do forensic work – did no better than chance. Equally astonishing, most of them didn’t know they could not detect deceit from demeanour.”

            Notably, while members of the Supreme Court insisted on the right of the accused to face an accuser, there remain instances, largely affecting Muslims in Canada, where this is simply not allowed. In security certificate cases, most of which are heard in secret, an individual never sees, much less hears, or even reads transcripts of, the allegations being made against them. In addition, in the limited public hearings, witnesses from the Canadian Security Intelligence Service often insist on testifying behind screens or video videolink from secure bunkers, invoking vague claims of national security.

            Similarly, individuals sought under extradition are generally not allowed to call as witnesses the individuals who piece together the paperwork that forms the basis of the extradition request.

            Ultimately, while the Court majority noted “The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law,” Abella’s dissent starkly reveals that, while accommodations will be sought, individuals like NS still face being “forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all.”

Canada Rejects Christ as "Failed" Refugee Claimant

(This piece was originally published in 2004; most of the issues remain relevant to today's worsening crisis over Canada's mistreatment of refugee claimants. Notably, Adil Charkaoui and Hassan Almrei are no longer subject to security certificates, while Mohamed Harkat heads to the Supreme Court in 2013 to challenge his ongoing secret trial ordeal)

Jesus to be Deported on National Security Grounds Despite Fears of Persecution; Alert Issued for Unauthorized Entry of Suspect Going by the Name of Claus

OTTAWA -A few days shy of his birthday, a young man by the name of Jesus Christ has had his refugee claim rejected by Canada. Christ, locked up in a solitary confinement cell for many months, now faces deportation to torture.

In a related development, two people claiming to be Christ's parents, Joseph and Mary, had sought to obtain refugee status in Canada, but since they arrived in the U.S. first, they were told they could not come here under the new Safe Third Country agreement. Their deportation hearing is expected in the next few weeks somewhere in upstate New York.

Government lawyer Donald MacVishus hailed the deportation order against Christ as a major victory in the war against terrorism. "It is clear this man is a threat, that no one would honestly want him in our midst," he declared. "I think the court can take judicial notice of the fact that this man is not merely a simple coin flicker to beggars on the Jericho Road, but someone who wants to change our whole way of life! He is part of a worldwide conspiracy with connections throughout the Middle East to every known bearded terrorist!"

Christ, looking haggard in a prison orange jumpsuit, his long, wavy hair and flowing beard in a bedraggled state, last appeared in court earlier this week as his lawyers attempted to call forward for cross-examination certain pieces of secret evidence which have been used against him. The Federal Court judge insisted the law allows for such secrecy, and declared that Canadian national security would be compromised if the case against Christ were revealed. After washing his hands, the judge left the court.

Lawyers had asked for information about CSIS interviews with Christ, but because CSIS does not record interviews nor make verbatim notes, there was little to go on. "The Service noted that Christ appeared unusually calm when pressed about his possible association with prostitutes, beggars, and lepers," read a short half page of notes which were eventually declassified. "Christ also seemed hesitant when asked whether an individual named Joseph was his father, a sign that he was withholding the true nature of his character."

A last-minute appeal to Immigration Minister Judiss Sgrewyu on humanitarian and compassionate grounds was rejected with the declaration that "Canada must not become a haven for queue-jumpers and terrorists."

Originally detained for carrying reading materials written in ancient Hebrew which immigration officials found "suspect," Christ was also deemed to be a security threat because he allegedly uses a number of aliases, including Prince of Peace, Jesus of Nazareth, and the Son of God. He had travelled to Canada, like most refugees, on a false passport, because if he had used his real name on travel documents, Roman authorities may have picked him up before he could have fled the country.

Christ was also deemed inadmissable to Canada because of his criminal record; he, like all refugees coming to this country, are considered not worthy of being accepted even if those convictions have occurred in countries where there is no due process or internationally recognized legal system. Worse, refugees who have been convicted of minor offences which would be deemed "summary" (or lesser) offences if convicted here in Canada have their record interpreted as indictable (or more severe) upon their arrival here, regardless of the circumstances.

Christ had fled Palestine due to fears of persecution by Roman occupation authorities, who were concerned about his outspoken statements and actions on behalf of the poor and downtrodden of his country. Unfortunately, since Canada has no refugee appeals division (promised in the 2001 immigration act but still not realized), he has no real options. While his pre-removal risk assessment concluded that Christ was at substantial risk of torture or worse if deported back to Roman occupied lands, the immigration minister's delegate concluded that Christ could pose a danger to the Canadian public and economy.

"This is a man who fanatically and militantly talks about peace which, if it broke out, could cost thousands of military manufacturing jobs and the loss of possible star wars contracts," the immigration report notes. "Under C-36, our anti-terrorism act, Christ's language and subsequent peacemaking actions are both clearly seen as a terrorist threat. Section 27 (3h) marks as a terrorist anyone who 'Interferes with the design, development or production of any weapon or defence equipment of, or intended for, the Canadian Forces, including any hardware, software or system that is part of or associated with any such weapon or defence equipment.'"

The report also noted Christ has spoken extensively about equitable distribution of wealth and against individual and corporate greed, again marking him as a terrorist in the eyes of Canadian law (Section 27 (3j) of C-36 names as a terrorist anyone who "adversely affects the stability of the Canadian economy, the financial system or any financial market without reasonable or financial justification.")

In another mark against Christ, the minister's delegate points out one particular incident in which the refugee applicant was "particularly violent, overturning a table used by moneychangers in a temple frequented by Canadian money speculators." Canada's criminal code notes as well a terrorist is anyone who "damages property outside of Canada because a person or entity with an interest in the property or occupying the property has a relationship with Canada or a province or is doing business with or on behalf of the Government of Canada or a province."

"Therefore," the immigration report concludes, "we determine that the threat which Christ poses to Canada is greater than the risk to him if deported."

Human rights groups have criticized the occupation Roman Empire for ongoing torture, racial and religious profiling, crucifixions, and a general climate of repression in the Holy Land. They have also noted that Christ's life would be in grave danger is deported

Canada, which claims not to deport individuals to torture, is nonetheless prepared to deport Christ just as they are doing in the cases of Mohammad Mahjoub and Mahmoud Jaballah (both Egyptian refugees), whom the government's own pre-removal risk assessment found to be at substantial risk of being detained, tortured or worse if deported. Refugees and long-time secret trial detainees Hassan Almrei, Mohamed Harkat and Adil Charkaoui face similar fates if deported to Syria, Algeria and Morocco, respectively.

In a related development, critics of Canadian policies are also concerned about a border alert which has been issued to U.S. Homeland Security and Canadian Border Services Agency outposts looking for a bearded man in a red suit who may be expected to arrive in this country later this week.

The individual, a noted Red, or Communist, is, according to the bulletin, "NOT a U.S. or Canadian citizen, carries no passport, goes under a number of aliases including Jolly Old Saint Nick and Kris Kringle, carries suspicious looking sacks and avoids customs, has attended a non-registered flight school with respect to flying unauthorized aircraft that often include the use of animals, wears religious headgear, travels without reservations, has a big beard, and visits Afghanistan, Pakistan, Iran, North Korea, and other suspect countries every year. The man is also known to promote dangerous notions of social equality. If this suspect individual is seen, please alert the CIA, RCMP and CSIS immediately, and do not be lulled into a false sense of security by the individual's seemingly laid back demeanour."

Generals at the Canadian-based NORAD early warning system, upgarded earlier this year to become more in tune with U.S. space weaponization plans, announced they are fully prepared to launch kill vehicles if necessary to stop this threat.

More information on these issues can be found by contacting Homes not Bombs, tasc@web.ca, http://homesnotbombs.blogspot.ca/

Harkats head back to Supreme Court after 10 years of secret trial nightmare

By Matthew Behrens

Most couples sitting in courtrooms are there for separation and divorce proceedings. Not so Sophie and Mohamed (Moe) Harkat, who have spent years in court because they desperately wish to stay together. The Ottawa couple have spent the past decade resisting with all their might the attempt to make their marriage a threesome by a secretive party who, in a manner that most relationship counsellors would mark as a major red flag moment, refuses to be open and honest, all the while it questions the authenticity of the Harkats' love for one another.

While the Harkats would agree with the late Prime Minister Pierre Trudeau that the state should stay out of the bedrooms of the nation, it is the secret trial security certificate legislation introduced by Trudeau that has resulted in Ottawa's perverse attempts to record, analyze and cross-examine the couple's most intimate moments. Under the secret trial provisions, the federal government can declare any refugee or permanent resident a threat to national security and then refuse to explain why. This relic of the Spanish Inquisition, which bears striking resemblances to the security laws under apartheid South Africa and Pinochet's Chile, continues to be pursued at the Federal Court of Canada, almost six years after it was found unconstitutional by the Supreme Court.

December 10, International Human Rights Day, marked the 10th anniversary of this relationship between the Harkats and the secretive party, resulting in cameras at entrances to the Harkat home, phone taps on their line, a prohibition on cell phone and Internet use, being followed by armed men everywhere they go, having to find housing that will accommodate a parking spot for those who would surveil them, house raids by police with sniffer dogs, and dozens of other indignities.

TOTAL SURVEILLANCE
The ultimate insult is that whenever Moe moves in bed or goes to the refrigerator for a glass of juice, the government knows because of the GPS monitoring device permanently strapped to his leg.

The Harkats' story is eerily reminiscent of the stalker movie Fatal Attraction, but in this case, the Glenn Close character is played by agents of the Canadian Security Intelligence Service (CSIS), the scandal-plagued, inept spy agency whose profoundly single-minded obsession with Moe and a series of allegations that they refuse to make public have resulted in the Kafkaesque nightmare that the Harkats continue to live daily. CSIS has yet to boil a cute bunny rabbit in the Harkat kitchen, but the ultimate goal of their efforts is equally gruesome: they seek to deport Moe to Algeria, where he would face torture.

This is not a case for mediation. It's equally unsuitable for a proper legal proceeding, given that security certificates by legislation are based on information not normally admissible in a court of law. Hearsay, guilt by alleged association, and the lowest standards of proof in any court in Canada make for a dysfunctional show trial in the Federal Court, which for 21 years has provided judicial cover for thinly veiled renditions to torture.

To mark their 10th anniversary, the Harkats received a rather peculiar but hopeful gift: a 2013 invitation to argue their case at the Supreme Court of Canada, which for the third time since 2006 will consider the draconian legislation that's been condemned by Amnesty International, Human Rights Watch, and various United Nations bodies, in addition to thousands of people across the country.

SECRET TRIAL FIVE
During the 2006 hearing, five Muslim men were subject to the draconian process, four of them detained without charge at the Guantanamo North facility in Kingston, one under house arrest. When the court unanimously found the process unconstitutional because it denied the named individual the right to know the case against them, the issue went back to the government. The detainees themselves called on Ottawa to treat them as they would any Canadian citizen under similar circumstances: if evidence actually did exist, charge them in a fair and open criminal proceeding, with the attendant procedural safeguards and protections, or let them go free.

But the government, along with a clearly biased Federal Court, chose to return to their old ways with some window dressing changes. Indeed, one Federal Court judge showed her preferential option for the powerful when she declared, "I do not believe that the Supreme Court intended the previous rulings are to be revisited or that current proceedings necessarily are to be altered as a result of its determination." In addition, the Federal Court played partisan when it funded a study on continuing this process with the addition of special advocates, security-cleared lawyers who could see some of the secret case. That was the change introduced by the Harper minority government and passed with the shameful complicity of the Ignatieff Liberals. The secret trial process began anew for five Muslim men in February, 2008.

Shortly afterwards, the case against Montrealer Adil Charkaoui was withdrawn, and in 2009, Hassan Almrei became the first of the five to win a case on its merits when it was discovered CSIS agents "were in breach of their duty of candour to the Court."

Since then, the Harkats learned one of the potential informers in their case was carrying on an affair with a CSIS officer investigating them. CSIS also withheld information indicating an informer had failed a polygraph test. The Federal Court refused to throw out the case, but did declare "it was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding."

Meanwhile, most of the draconian conditions against Harkat were lifted, and the couple suddenly had hope that the end was near. But the security certificate against Harkat was upheld in 2010 based solely on secret allegations Harkat was still not allowed to see and challenge. At the time, Harkat lawyer Norm Boxall asked, "What can an innocent person do other than to say 'I didn't do it,' and then to be told that they're a liar based on material they can't face?"

SUPREME COURT IN 2013
In 2013, the core issue, unremarkably, boils down to the same problem that the Supreme Court identified in its 2007 decision: how can one meet a case that one does not know? How the court decides the issue will impact not only Toronto's Mohammad Mahjoub and Mahmoud Jaballah, both of whom are still waging a defence against allegations that date back to the mid 1990s, but also a whole class of refugees who are increasingly being deemed "inadmissible" to Canada based on secretive allegations.

In their appeal to the Supreme Court, Harkat lawyers Boxall and Matt Webber note Harkat is not alleged to be a danger to Canada, and that the two main witnesses in the public portion of the secret hearing had no personal or direct knowledge of the case against Harkat. Much of the case was also based on summaries of alleged phone intercepts, the originals of which had been destroyed, as well as secret informants, none of whom were allowed to be cross-examined by the special advocates in a secret session.

Harkat's lawyers call the public proceedings "more a façade than a constitutionally compliant opportunity to know and challenge" the allegations. In 2007, the Supreme Court found that that secrecy and non-disclosure, "coupled with the grave intrusions imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures" that would satisfy an individual's Charter rights. The country's highest court also declared "fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case."

Clearly, the role of the special advocates -- who have taken on the tricky and problematic position of playing a restricted role in a secret proceeding while at the same time ferreting out significant details and the release of materials that no judge would be capable of doing on his own -- has made some difference in these cases. But it has not been enough, for they cannot be an adequate substitute to the detainee knowing the true nature of the case against them. The fact that two cases have been thrown out does not mean the system works or is compliant with fundamental rights. In Harkat's case, his lawyers note, Moe remains a "non-participant in the vast majority of the proceeding. The evidence that truly matters to him remains unknown."

CSIS RELIES IN TORTURE
Throw into the mix memos released last December in which CSIS acknowledged to the Public Safety Minister that none of these cases could stand if torture-gleaned evidence had to be removed, coupled with the major findings of CSIS malfeasance in two federal torture inquiries, and one can see that the house of cards is about to fall.

Significantly, with one bizarre exception, CSIS, after initiating 1-3 certificates a year from 1991 to 2003, has not issued a new certificate since May, 2003, a remarkable restraining of state power by grassroots organizing initiated and led by the Campaign to Stop Secret Trials in Canada since August, 2001. But the human damage left behind remains all too real, from the devastating physical consequences of 100-day hunger strikes, years in solitary confinement, the psychological torture of limbo and the threat of deportation to torture, to government-sponsored home invasions, the ripple effects on families and communities, and the scarlet letter of always being a "suspected terrorist" in Google searches.

But while security certificates appear headed for the dustbin of history, some of their more pernicious attributes remain in place under the Orwellian-named Immigration and Refugee Protection Act.

Barb Jackman, a lawyer who likely has more experience with such cases than anyone else in Canada (dating back to the 1980s), notes that security certificate proceedings represent the tip of a rapidly growing iceberg, stating that  "hundreds and hundreds of people [are] accused of being terrorists in the other secret process before the immigration division members. Those people are equally wallowing in the same kind of mistreatment [as the secret trial detainees]. It's just not on the public radar because it's not in the press. You might say the [security certificate] cases may end and that's the end of the problem. But it's not. They've created an octopus. I have an office full -- dozens of people -- who are facing secret hearings in another context before people who aren't even judges and certainly are not fair in the way that they handle the cases."

While advocates rally around the three remaining secret trial detainees at the Supreme Court, they recognize that their work is far from over as repressive measures continue to grow against increasing numbers of asylum seekers in Canada.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. 'national security' profiling for many years. This article originally appeared at rabble.ca

Massive New RCMP Databank to Track Visitors to Canada

(this story originally appeared in the December, 2012 edition of Muslim Link)

By Matthew Behrens

            As major changes to Canada’s immigration system come into effect, one little publicized set of regulations will significantly impact privacy rights and, potentially, the future safety of those who wish to visit this country. Disturbingly, these regulations continue the trend of assigning the  presumption of guilt to anyone from non-European and Muslim-majority countries.

            On December 8, the Canada Gazette published a notice that biometric data (photographs and fingerprints) will soon be required for visitors from a list of some 30 countries, including Afghanistan, Algeria, Bangladesh, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Lebanon, Libya, Nigeria, Pakistan, territories governed by the Palestinian Authority, Saudi Arabia, Sudan, Sri Lanka, Syria, Tunisia, Vietnam and Yemen.

            Once the system is set up in the fall of 2013, it will affect as many as 300,000 people annually, impacting Canadian academic institutions, employers of so-called foreign workers, students from overseas, and the Canadian tourism industry. The cost of giving up such personal information will be $85 per person, in addition to a file held by the RCMP for at least 15 years.

            The government argues such measures are necessary to prevent the use of fraudulent documents and, in its standard canard, to maintain national security and the “integrity” of the immigration system. The list of countries was selected by immigration officials with the assistance of CSIS, the RCMP, Canadian Border Services Agency (CBSA), and the Department of Foreign Affairs and International Trade (all agencies with a poor record of safeguarding individuals’ personal information, trading information with torturers, and mistreating members of Canada’s Arabic, South Asian, and Muslim communities).

Palestinians, But Not Israelis

            Notably, the regulations explain “Canadian foreign and trade policy objectives” were considered in creating this list which may explain why major trading partners such as China do not appear. Neither does Israel, whose Mossad agents have a history of using fraudulent Canadian passports to engage in assassination plots.

            Some exceptions are carved out for individuals under the age of 14 or over 79, as well as diplomatic staff and their families, refugee claimants, anyone coming to the Pan-American Games, and members of visiting armed forces.  The regulations claim this program will not affect those applying for permanent resident status, but provide no guarantee that this is where the invasion of privacy ends, for “future steps for broader implementation may be considered at a later date.”

            After two federal judicial inquiries found that the RCMP was complicit in torture for, among other things, improperly sharing information on Canadian citizens that was both false and clearly based on stereotypes arising from racial and religious profiling, critics are concerned about the agencies and countries with whom the Mounties will share this vast trove of new data. The regulations state the Mounties can share with Canadian law enforcement and the United States under a joint Canadian-U.S. declaration, “Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness.” That document states “we intend to work together to establish and verify the identities of travellers and conduct screening at the earliest possible opportunity. We intend to work toward common technical standards for the collection, transmission, and matching of biometrics that enable the sharing of information on travellers in real time.”

            Will the Mounties share personal information with overseas intelligence agencies in home countries that could in turn be used to harass, detain, and interrogate those who have visited Canada? Would questions arise about who was visited while here, the political opinions of individuals befriended in Canada, which mosque one prayed at, what the imam said during Friday prayer, what opponents of the regime may have been saying in Canada, and a host of other fishing expeditions that are not at all unrealistic given the findings of the above-mentioned inquiries?

            The government claims individuals worried about such basic civil liberties issues have no need for concern, as anyone who wants to visit will be informed as to the “potential uses of their personal information.” But how? Will that not be like providing those pages of fine print one sees in a credit card application when one needs a cash advance to cover the rent? Few people who need the credit read the terms and conditions anymore than it is likely that someone desperate to get to Canada will be provided a full tutorial of what the caveats mean, much less an overview of Canada’s history of abusing such provisos.

RCMP Holds Files

             This expanding era of data collection is based on a little-noticed field trial in which the CBSA and RCMP collected biometric data on some 14,000 temporary resident visa, study and work applicants in 2006/07. With the Harper government’s unrelenting rhetoric equating immigrants to Canada with risk and insecurity, it is unsurprising that this program is now on the books.

            “The fingerprints collected abroad would be sent to the RCMP for storage and would be checked against the fingerprint records of refugee claimants, previous deportees, persons with criminal records, and previous temporary resident applicants before a visa decision is made,” the regulations state, adding that since Canada does not currently have a biometric screening system, it will become a target for “bad faith travellers.”

            Bad faith travellers (one wonders, since this is directed at Muslim-majority countries, the extent to which this is an unintended pun) include “failed refugee claimants.” It’s a sweeping generalization that fails to account for the serious decline in acceptance rates that has little to do with the validity of a person’s requirements for asylum and more to do with poor advice, lack of an effective appeal, and increasingly narrow parameters in refugee decisionmaking.

Expanding Surveillance State

            In assuming that Muslim-majority countries produce “bad faith travellers” Canada is consistent with similarly broad targetting directed at these same populations either overseas or domestically. Examples of such profiling include the New York City “create and capture” program, in which police informants would attempt to bait Muslims into making inflammatory statements that could be used to justify future arrests, as well as the annual targetting by Toronto police of over 400,000 people during “non-criminal stops,” at which largely young black and brown-skinned men are asked their names, addresses, where they’re going, and who they’re with, all of which goes into police databanks. These numbers are higher per capita than New York City, and are matched in Ottawa, where racial profiling by police has led to human rights complaints and a new study that will document the ethnicity of those drivers stopped by police. (That study will not include pedestrians or cyclists similarly stopped, and, while likely confirming what most already know, fails to get at the root of the problem.)

            Overseas, Canadian Forces now collect iris scans of individuals they detain or who “act suspiciously,” with the view to supporting the work of other governmental departments. In other words, someone wrongly detained in Afghanistan who later seeks to come to Canada is already red flagged because they had previously been deemed “suspect” or of “bad faith”.  (The U.S. military has over 2 million such scans from Iraq and Afghanistan).

            How lethal does such targetting become? It certainly justifies President Barack Obama’s signing off on drone strikes, allowing him to claim civilian “collateral damage” deaths are so low because, as the New York Times reported May 29, Obama’a policy “in effect counts all military-age males in a strike zone as combatants… unless there is explicit intelligence posthumously proving them innocent.”

            Canada’s improper use of private information has led to overseas detention and torture, and its failure to implement the Arar Inquiry’s recommendations on information sharing – among other necessary safeguards to prevent the kind of guilty-until-proven-innocent logic of racial profiling – does not bode well for those supplying their prints and pictures to a visitor program that, within a decade, will possess over 3 million files.